Intercounty Const. Corp. v. D. C., 80-1004.
| Docket Nº | No. 80-1004. |
| Citation | 443 A.2d 29 |
| Case Date | March 15, 1982 |
| Court | Court of Appeals of Columbia District |
v.
DISTRICT OF COLUMBIA, Appellee.
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Douglas L. Patin with whom Herman M. Braude, Washington, D. C., was on the briefs, for appellant.
Leo N. Gorman, Asst. Corp. Counsel, with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellee.
Before NEWMAN, Chief Judge, and NEBEKER and MACK, Associate Judges.
MACK, Associate Judge:
In this contract dispute, Intercounty Construction Corporation appeals from an order of the Superior Court granting the District of Columbia's motion for summary judgment, denying Intercounty's motion for summary judgment and affirming the judgment of the Contract Appeals Board in favor of the District. Appeal of Intercounty Construction Corp., CAB No. 500 (Jan. 30, 1979). Specifically, Intercounty argues that Paragraph 12(f) of the Special Provisions of the District's standard highway construction contract is ambiguous, that Intercounty's interpretation is reasonable, and, as such, that it is entitled to recover additional monies under the contract. We find that on this record summary judgment for appellee was improperly granted and we therefore reverse and remand.
Intercounty entered into a contract with the District in May 1974 for the construction of the H Street overpass. The contract contained the standard governmental construction projects changes clause, the pertinent section of which is as follows:
Article 3. Changes. — The Contracting Officer may at any time, by written order, and without notice to the sureties, make changes in the drawings and/or specifications of this contract and within the general scope thereof. If such changes cause an increase or decrease in the cost of performing the work under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. . . .
If the parties could not reach an "equitable adjustment" resort was to be made to other provisions of the contract. One such provision [Paragraph 12(f) of the Special Provisions] provided the method for calculating the rate at which the contractor or his subsidiary should be paid for the use of their equipment in the event of government requested contract changes. Such payment
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will be based on an hourly rate derived by dividing the current appropriate monthly rate from the Associated Equipment Distributors' Manual by 176 hours. . . . The hourly rate shall include all repair costs, freight and transportation charges, fuel, lubricants, taxes, insurance and other incidentals. No additional allowance will be made for overhead and profit.
On September 12, 1974, the District notified Intercounty to proceed with a change to the contract and to relocate steam and air lines. Subsequently, a dispute arose between Intercounty and the District as to the amount to be paid to Intercounty for work performed by its subcontractor, John J. Wilson, Inc., with respect to the change. The District paid Intercounty $146,228.00. Wilson, however, claimed it was owed an additional $16,174.15, plus interest, for the use of its equipment in performing the change order and on September 19, 1975, Intercounty, on behalf of Wilson, requested the Contracting Officer for the District to render a final decision on its claim. The Contracting Officer denied Intercounty's claim ruling that payment was made in accordance with Paragraph 12(f) and represented an equitable adjustment for the work performed.
Intercounty appealed this decision to the Contract Appeals Board which affirmed, ruling, as a matter of law, that Paragraph 12(f) was not ambiguous, that the term "include" connoted a limitation, not an expansion and that the term "hourly rate" included "all repair costs, freight and transportation charges, fuel, lubricants, taxes, insurance and other incidentals [and that the appellant was] not entitled to additional compensation." Appeal of Intercounty Construction Corp., supra at 6, 10-11.
Eight months thereafter, Intercounty filed a complaint in the Superior Court seeking to reverse the Board's decision as erroneous as a matter of law. Both parties filed cross-motions for summary judgment and the court, without opinion, granted the District's motion and entered the summary judgment from which the appellant appeals. Intercounty Construction Corp. v. District of Columbia, No. 15984-79 (July 9, 1980).
Superior Court Civil Rule 56(c) provides that summary judgment shall be granted if the materials submitted show that there is no genuine...
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